Florida High Court Rules Defendants Can ‘Burgle’ Dwellings Unfit for Occupation – Young v. State

September 25, 2013 by David S. Seltzer

Burglary of a dwelling is usually considered a more serious crime than burglary of a closed business. In a dwelling, it’s harder to predict when the victims might not be home—and if someone is home, the chances of a violent confrontation go up. That’s especially true if the accused is armed, which was the case in Young v. State, a decision of the Florida Supreme Court. Eric Young was convicted in Orange County (Orlando) with burglary of a dwelling with an assault with a dangerous weapon, robbery with a weapon and carjacking with a weapon. Young argued on appeal that his burglary conviction should be downgraded because the dwelling was not fit for occupation; the victim was installing drywall at the time of the crime. The Fifth District Court of Appeal disagreed, in a ruling that conflicted with other appellate courts. The Florida Supreme Court ultimately upheld the conviction.

In September of 2009, Young entered a building where the victim, a drywall contractor, was cutting drywall. While he was on the floor, the victim saw a man with a gun, Young, who ordered the victim to look away and then stole his wallet, keys and phone. After Young and an accomplice drove away in the victim’s pickup truck, the victim called 911 from a neighbor’s home. Two days later, officers saw Young run two stop signs in the stolen truck, tried to pull him over, and apprehended him after a chase. They then discovered that the truck was stolen. A jury convicted Young of the lesser included offenses of burglary of a dwelling with assault with a dangerous weapon; robbery with a weapon; and carjacking with a weapon. Young argued to the Fifth District that he cannot be convicted of burglary of an unoccupied dwelling. He was unsuccessful.

The Florida Supreme Court took up the case to resolve a conflict with a Second District decision. The high court started by saying Young didn’t preserve the issue well enough for appeal and the dispute is not one of fundamental error. However, the court said, his claim also fails on the merits. Florida law defines a dwelling as a structure with a roof that is designed to be occupied by people at night. Design or suitability for occupation controls this determination, the court said. The Second District decided that a “gutted” home could not be a dwelling under the statute because it was unsuitable for occupation. But the Supreme Court rejected this, saying there is no requirement that the building be habitable on the date of the offense; it is enough that it was intended for occupation. To hold otherwise would deny the protection of added penalties to anyone unlucky enough to be burgled during a renovation or period of disrepair, the court said.

The difference is not academic; burglary of a dwelling comes with a mandatory minimum of 21 months in state prison. These fine points of law truly matter when you’re accused of a serious crime, which is why it’s vital to get in touch with a Miami criminal defense attorney as early as possible in the process. I would have preferred a different outcome, because the logic behind increasing the penalties for burglary of a dwelling doesn’t apply when the “dwelling” is not only unoccupied, but clearly not currently being used as a dwelling. A violent confrontation can only take place if someone else is in the structure when the defendant arrives; a structure that is clearly unoccupied would not pose that problem. In addition, when no one lives in a structure, robbing it does not deprive anyone of a feeling of security.

Seltzer Law, P.A., represents clients in South Florida and across the state who are facing serious criminal charges. We answer the phone 24 hours a day and seven days a week because we know police don’t stop working after 5 p.m. For a free, confidential consultation, call us toll-free at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.

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